ESA - Determined opposed to Treated as LCFW

Please can someone confirm whether people who are ‘treated’ as having limited capability for work under Reg 20,25,26,29 & 33(2) ESA REGS 2008 recieve the work related activity component immediately upon their ESA claim, or after week 13 or do these category of claimants have to also be Determined in having LCFW (at some point) to recieve the WRAC as like those under REG 30 ie production of a sick/fit note. I promise this question has nothing to do with my last arguement!

I have always read the law as requiring everyone to undergo the LCW assessment.  That’s because a component cannot be paid until the assessment phase has ended and it is clear from Reg 4 ESA Regs that the assessment phase doesn’t end for those treated as having LCW under Regs 20, 25, 26, 29, 33(2) until the LCW determination has been made.  I suspect the inclusion of Reg 29 in that list is a mistake because, as we know, you can be treated as having LCW under Reg 29 only after an LCW determination has been made that a person does not have LCW.

In practice, I think the DWP do start paying the component in certain cases, eg for those terminally ill under Reg 20, without first considering whether they actually have LCW.  I recall that the DMG even suggests that Reg 20 claimants are exempt from the LCW.  Whilst understandable, that does not appear to comply with the law.  However, a DM could easily treat the LCW assessment as a paper exercise in these cases if he/she wished, eg find someone scores 15pts on the basis of the sick note/treatment/diagnosis (eg, cancer) alone without requiring a medical.  In that sense, a claimant could start receiving a component without realising that they’d passed the LCW test.  But the answer to your question “can a person start to receive a component on the strength of being treated as having LCW?” would be no in my view.

It may be different for those treated as having LCW under Reg 30.  That will depend on whether your UT case on Reg 4 is successful.  I’m guessing that judgment is still in the typing queue?

Many thanks Tom for your reply. This is the believed situation as I read to believe and understand. NB I have a client going to FTT due to scoring 6 points. Upon reading the marvellously constructed ESA Regs 2008 I could argue that the client is ‘treated’ as having LCFW under Reg 20(c) however as she has attended a medical and scored 6 points this argument would be of no benefit to the applicant. Therefore what’s the point having Reg 20(b) & (c) & Reg 26 when these applicants would probably be able to obtain a sick/fit note for Reg 30 purposes in any event. The clients treated as having LCFW under Reg 20 & 26 are no better off (for WRAC purposes) than those with a sick note. This is what Judge Bano brought up in that if the Reg 4 argument succeeded for those under Reg 30 (Fit/sick note) then those terminally ill could be worse off awaiting a determination.

Tony Bowman has a thread(s) on this issue re those treated under Reg 33(2).  I think if, eg, a Reg 20 claimant fails the LCW assessment they should at that point be awarded a component because they remain entitled to be treated as having LCW under Reg 20 and they have had a LCW determination.  So all the conditions of Reg 4 are satisfied.  Sorry to disappoint you, JM, but I think Judge Bano is correct: your argument does advantage Reg 30 claimants compared to Reg 20, 25, 26 etc claimants.  However, that sort of anomaly is irrelevant provided Reg 4 is clear and unambiguous.  It would only be if Judge Bano was not convinced of Reg 4’s clarity and was looking to make a purposive construction of Reg 4 that the above anomaly would be relevant and probably would mean he’d find against you.

Dear Tom - Volume 8 at Chapter 42 of the DMG states…........

42011 Certain claimants are treated as having LCW and do not have to undergo the LCWA1 (see DMG 42018). However some claimants who do not have to be assessed for LCW will still have to be assessed for LCWRA (see DMG 42351 et seq).
1 ESA Regs, reg 20

42018 Claimants are treated as having LCW and do not have to undergo the LCWA if any of the circumstances in DMG 42019 apply to them1 unless they are treated as not having LCW because they are working2 (see DMG 42298 et seq).

42019 [See DMG Memo 1/13] For the purposes of DMG 42018 the circumstances are that a claimant1
3. is known or reasonably suspected to be a carrier, or to have been in contact with a case, of a relevant infection or contamination and
3.1 is excluded or abstains from work in accordance with a request or notice in writing in accordance with legislation or
3.2 is otherwise prevented from working in accordance with legislation (see DMG 42029)

So 42011, 42018 states clients under Reg 20 ESA Regs do not have to undergo a LCFWA. Therefore are they not entitled to the WRAC from the outset of their claim as otherwise the DMG states they would never be assessed and therefore never receive the WRAC. For the purposes of Reg 20 an infection in the throat will suffice and can it not be argued that the abstaining from work in accordance with a notice in writing in accordance with legislation is simply the client following Doctor’s orders in the form of a sick note which is a notice in writing made in accordance with legislation ie the Medical Evidence Regulations themselves. Is there any scope in this argument!

I had in mind the DMG extracts to which you refer when I mentioned the DMG in my earlier post.  The problem as you know is the drafting of Reg 4 itself:

“The end of the assessment phase

4.—(1) Subject to paragraph (2) and regulation 5, the assessment phase in
relation to a claimant ends on the last day of a period of 13 weeks beginning on the
first day of the assessment phase as determined under section 24(2)(a) of the Act.

(2) If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet
been determined whether the claimant has limited capability for work–

(a) the claimant having been assessed in accordance with a limited capability for work assessment; or

(b) as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or regulation 33(2) (persons to be treated as having limited capability for work),

the assessment phase will end when the limited capability for work determination is made.”

The problem arises because “limited capability for work determination” is not defined in the ESA Regs.  Limited capability for work assessment is defined in Reg 2 but that doesn’t help.  It is implicit in Reg 4 above that the “LCW determination” is definitely not a determination treating someone as having LCW under Regs 20, 25, 26, 29, or 33(2).  It follows that “LCW determination” in Reg 4 is referring to the determination made under Reg 19, ie whether a person scores 15pts or not.

The problem is compounded by the fact Reg 7A Decisions and Appeal Regs (D&A) does attempt a definition of “LCW determination” but only for the purpose of the D&A Regs not the ESA Regs as follows:

“limited capability for work determination” means a determination whether a person has limited capability for work by applying the test of limited capability for work or whether a person is to be treated as having limited capability for work in accordance with regulation 20 of the Employment and Support Allowance Regulations (my emphasis);”

Sorry, I’ve removed a lot of this post on reflection.  I think you’d accept John that your argument does advantage Reg 30 claimants.  That’s how you sold the argument in the first place, ie that your Reg 30 claimants were not mentioned in Reg 4(2) so could rely on the more generous Reg 4(1), whereas the claimants mentioned in Reg 4(2) couldn’t. http://www.rightsnet.org.uk/forums/viewthread/2810/P180/

But I also think that your argument should prevail because Reg 4 is sufficiently clear in my view to allow a literal interpretation of it which would allow any anomalies that your argument creates to be ignored.  Hopefully judge Bano will see it that way.
You missed an important part from Reg 20 in your last post :
“20. A claimant is to be treated as having limited capability for work if–
....
“(c)the claimant is–
(i) excluded or abstains from work, or from work of such a kind, pursuant to a request or notice in writing lawfully made under an enactment; or
(ii) otherwise prevented from working pursuant to an enactment,
by reason of it being known or reasonably suspected that the claimant is
infected or contaminated by, or has been in contact with a case of, a relevant
infection or contamination”(my emphasis)
Nice try though:)

Many thanks Tom for your detailed reply. I take on board your view that the Reg 4 argument is not concerned in making a determination of whether someone is to be ‘treated’ as having LCFW other than Reg 30 applicants. Therefore could it be that the non Reg 30 applicants are indeed ‘treated’ as having LCFW immediately after week 13 and therefore receive the WRAC until it is actually ‘determined’ that they are not eg Reg 20. Eg an applicant applies for ESA under Reg 20 from the outset - their condition being confirmed in a sick note. They should receive the WRAC up until a DM determines they are not Reg 20. It seems that the DWP do not investigate the other groups ‘treated’ as having LCFW (eg Reg 20) as they are too concerned regards the mere production of a sick note and go on the Reg 30 route regardless.

Again what are your views on the DMG at Volume 8, chapter 42 at section 42011 & 42018 where it states that the non Reg 30 applicants do not have to undergo a LCFWA!

Lastly DMG 42019 mentions relevant infection or contamination. This is incorrect as the 2008 Regs state…

“relevant disease” means—
(a)in England and Wales, any disease, food poisoning, infection, infectious disease or notifiable disease—
(i)to which section 20(1) of the Public Health (Control of Disease) Act 1984(40) (stopping of work to prevent spread of disease) applies;

and this requires one of the following to be proved…..

(a)enteric fever (including typhoid and paratyphoid fevers);
(b)dysentery;
(c)diphtheria;
(d)scarlet fever;
(e)acute inflammation of the throat;
(f)gastro–enteritis; and
(g)undulant fever.]

As my client has a cyst in her throat I will argue at FTT this week the Reg 20 argument as the DWP decision notice confirmed my client not achieving 15 points and made no reference to a possible Reg 20 case. Any thoughts would be appreciated.

Further thoughts - Reg 4(2)(a) requires this type of applicant to carry out a medical assessment and await a determination. These applicants must be Reg 30 persons (production of sick note) as 4(2)(a) has no mention of Reg 20,25,26,29 & 33(2) otherwise how could they prove/suggest they were too ill to work.

Reg 4(2)(b) has no mention of the need for a limited capability for work assessment but again their assessment phase must end for the purpose of receiving the WRAC. Therefore can the initial letters sent out from the DWP/JCP confirming payment of ESA (whether cont based or income based) be classed as their actual determination ie they accept that the applicant has LCFW under Reg 20 so therefore they would receive the WRAC from week 13 unless the DWP refuse to accept Reg 20 but do accept a Reg 30 application ie production of a sick note.

I agree with Tom that the assessment phase ends when a determination is made so in my client’s case the decision was that he/she failed to gain 15 points but no mention of the Reg 20 in their decision and so she/he should still receive the WRAC until it is decided that he/she is not a Reg 20 case. As Judge Bano indicated to me why would the Reg 4(2)(b) applicants not be entitled to the WRAC immediately after week 13 as the 4(2)(a) persons.

Lastly the Reg 20 argument gets very interesting as it includes the Public Health (Infectious Diseases) Regs 1988 where at Reg 3 and Schedule 1 it includes ‘viral hepatitus’ which affects clients with Hep C etc.

FAO Tom H & others - I have received today a DWP submission regards a client who has been in receipt of ESA and the WRAC since June 2010. In December 2012 client completes an ESA50 and attends a medical in May 2013 and receives a decision on 21st June 2013 stopping the ESA having scored zero points. The decision is appealed. The RMP confirms that the client has Hep C whereby this being a Viral hepatitis which is one of the diseases mentioned in Reg 20 by virtue of Reg 3 and Schedule 1 of the Public Health (Infectious Diseases) Act 1988 as per the ESA Regs interpretation at Reg 2-(1). The assessment phase has now ended for this client NB the RMP only confirms zero points scored but again confirms client has Hep C but does not go onto say the client is not a Reg 20 candidate. Under these circs (Fao Tom H) should the client still receive the WRAC up until the Tribunal hearing in any event whatever the Tribunal decision.

John, sorry for not getting back to your earlier.

I think a distinction needs to be drawn between (i) having or being treated as having LCW and (ii) when the assessment phase ends.

As we know, the question in (ii) is important because you cannot be entitled to either WRAC or SC unless the assessment phase has ended - see sections 2(2)(a) & (3)(a) and 4(4)(a) & (5)(a) WRA 07.  The only exception to that rule is for terminally ill claimants who can start to receive the SC without the assessment phase ever ending – see Reg 7(1) ESA. 

As a consequence, terminally ill claimants also never have to sit the LCW assessment.  Such claimants, provided they do not return to work, are treated as having LCW under Reg20 until death.

What I stated in my earlier posts regarding terminally ill claimants was obviously incorrect and I’m happy to correct it here. 

However, the DMG also states, as you say, that the other people mentioned in Reg 20 also do not have to sit the LCW assessment.  In one sense that is correct also.  In fact, it’s true of all claimants who are treated as having LCW.  But there is no equivalent of Reg 7(1) ESA Regs for any of them with the result that the assessment phase still has to end for them before they can receive a component.

That raises the question when does the assessment phase end for them?  I think the answer has been staring us in the face.  It must end when the determination treating them as having LCW under Reg 20, 25, 26, or 33(2) is made.  The “limited capability for work determination” in Reg 4 must include a reference to such determinations as well as to a Reg 19 determination.  Then everything makes sense.  When a disabled student, for example, claims ESA the DM is likely to make further enquiries of the student, perhaps of the institution where he’s studying in order to determine whether he can be treated under Reg 33(2) as having LCW.  All Reg 4 is saying is if, eg, at the end of the 13 weeks, those enquiries haven’t been completed, the assessment phase will not end for the student until it is determined under Reg 33(2) that he can be treated as having LCW as a disabled student. 

It shouldn’t, in the majority of cases, take more than 13 weeks to make Reg 20, 25, 26 33(2) determinations with the result that the assessment phase for such claimants should end under Reg 4(1).  The WRAC should be payable from wk14 so that there is no anomaly between those in 4(2)(a) and (b).  I can’t believe it took so long to work that out.  Of course, it may take much longer than 13 weeks for most claimants to undergo a LCWRA (support group) assessment but that’s fine: they can at least have the WRAC while waiting and if they do eventually get the SC, the difference between it and the WRAC can be backdated to wk14.  Terminally ill claimants again should be able to get the SC from day one without having to ever sit the LCWRA test (Reg 35 ESA).

That just leaves the question “can people treated as having LCW under Regs 20, 25, 26, 29, 33(2) be assessed under the LCW assessment (ie Reg 19)?”. 

Para1 of Sch2 to the WRA 2007 provides for this as follows:

“1. Regulations may make provision–

(a) for a person to be treated in prescribed circumstances as having, or as not having, limited capability for work;

(b) for the question of whether a person has limited capability for work to be determined notwithstanding that he is for the time being treated by virtue of regulations under sub-paragraph (a) as having limited capability for work;
….”

Para 1(a) above authorises the making of Regs 20, 25, 26, 29 and 33(2).  And para 1(b) authorises the making of Reg 19(7)&(8) ESA Regs.  The latter gives a DM discretion to assess someone under the LCW assessment despite the fact that person is “for the time being” treated as having LCW under Reg 20, 25 etc.

When the DMG states the remainder of Reg 20 claimants do not have to sit the LCW assessment it is, therefore, correct because the DM has the discretion to leave them alone provided they still satisfy Reg 20.

Section 1(3)(a) WRA 2007 makes it a condition of entitlement to ESA that you have LCW.  That includes having LCW under Reg 19 and being treated as having it under regs 20, 25, 26, 29, 33(2) and, of course, Reg 30. 

If, eg, a disabled student determined under Reg 33(2) to be treated as having LCW (and receiving the WRAC from wk14 on that basis), is re-assessed under Reg 19 and fails to score enough points, a supersession is not possible in my view because the person still satisfies section 1(3)(a) WRA, ie they still satisfy Reg 33(2), and so remain entitled to the ESA incl the WRAC. 

The same would be true of someone having a relevant infection or contamination and, therefore, receiving the WRAC under Reg 20.  However, in your case John I’m not sure your client’s hepC still counts.

Reg 20 was amended with relevant infection or contamination replacing disease from 30/10/11.  You need to see the version of Reg 20 effective from 31.10.11 here: http://www.dwp.gov.uk/docs/a13-5101.pdf You’re quoting the version before that date. Good luck anyway.

I think we’ve solved Rightsnet’s most viewed thread.  Interesting to see if Judge Bano agrees.

Many thanks for your detailed reply - I really must get a grip with these amendments. The new definition re infection then being..

45A Infection or contamination
(1)The following provisions have effect for the interpretation of this Part.
(2)“Contamination” includes radiation.
(3)Any reference to infection or contamination is a reference to infection or contamination which presents or could present significant harm to human health.

45A(3) still sounds a good argument around Hep C regards Reg 20 it being an infection which does present or could present significant harm to human health.

Hi,

Sorry I’ve come to this thread late.

However, for me the position that it’s impossible to be paid the work related activity component without having to undergo a WCA is just plain wrong.

Reg 4 provides that -
“The end of the assessment phase
4. - (1) Subject to paragraph (2) and regulation 5, the assessment phase in relation to a claimant ends on the last day of a period of 13 weeks beginning on the first day of the assessment phase as determined under section 24(2)(a) of the Act.
(2) If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet been determined whether the claimant has limited capability for work–
(a) the claimant having been assessed in accordance with a limited capability for work assessment; or
(b) as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or regulation 33(2) (persons to be treated as having limited capability for work),
the assessment phase will end when the limited capability for work determination is made.”
For me, Reg 4(2) does ‘define’ what a limited capability for work determination is.

It is made either as the result of -
•  a WCA; or
•  the claimant being able to be treated as having a limited capability for work under regulation 20, 25, 26, 29 or regulation 33(2).

It s true that Reg 30 does specify other circumstances for treating a claimant as having a limited capability for work. But significantly it clearly specifies that this treatment only covers the period until a determination about limited capability for work has been made.

This makes sense as being treated as having a limited capability for work under Reg 30 applies to -
•  new claimants providing a fit note; or
•  those who reclaim you re-claim ESA within six months of a determination that that they do not have (or can be treated as having) a limited capability for work but who provide a fit note that they have a different condition or their condition has significantly worsened.

In contrast, those treated as having a limited capability for work under regulation 20, 25, 26, 29 or regulation 33(2) include those who it makes ‘sense’ not to be required to undergo a WCA.

For example, those who are terminally ill, at a certain stage of pregnancy, in hospital, receiving radiotherapy, at substantial risk if found fit to work or are a disabled student.

Its being a hostage to fortune but I would agree with the Decision Makers Guide -

“44016 Where a LCW determination has not been carried out within the 13 week period referred to in DMG 440111, the assessment phase will end once it has been determined that the claimant has LCW either by a LCWA being carried out (see DMG Chapter 42) or the claimant being treated as having LCW (see DMG Chapter 42).

1 ESA Regs, reg 4(2); 2 reg 4(2)(a); 3 reg 4(2)(b)”

Is anyone seeing clients who are appealing LCW decisions following a failed WCA despite them still being able to be treated as having a LCW with a tribunal then dismissing their appeal?

Or who are being paid the basic rate of ESA after 13 weeks despite being able to be treated as having a LCW under Regs 20, 25, 26, 29 or regulation 33(2)?

Payment of the WRAC is covered by the Welfare Reform Act as per previous thread - ‘ESA - Payment of WRAC.’ I tend to accept Tom H’s reasoning in this matter and agree that a ‘determination’ of some sort has to be made for payment of the WRAC either as a result of a LCFWA or by the client supplying alternative supporting evidence to their condition which is accepted by the DM as per…..

“For example, those who are terminally ill, at a certain stage of pregnancy, in hospital, receiving radiotherapy, at substantial risk if found fit to work or are a disabled student.”

Re your last point I have a client where the EMP/RMP confirms Hep C but client fails to have any points awarded. The DM determines the client is fit for work and states that none of the other qualifying regulations apply eg Reg 20. The DM does not quantify this finding in any way, probably as they don’t read the regulations as thoroughly as they should OR it suits them to ignore the other reg eg Reg 20. I will be attending FTT with this client asking the FTT that he/she be ‘Determined’ to have LCFW under Reg 20 because the DM never considered it.

Tom H - 06 September 2013 03:50 PM

That raises the question when does the assessment phase end for them?  I think the answer has been staring us in the face.  It must end when the determination treating them as having LCW under Reg 20, 25, 26, or 33(2) is made.  The “limited capability for work determination” in Reg 4 must include a reference to such determinations as well as to a Reg 19 determination.  Then everything makes sense.  When a disabled student, for example, claims ESA the DM is likely to make further enquiries of the student, perhaps of the institution where he’s studying in order to determine whether he can be treated under Reg 33(2) as having LCW.  All Reg 4 is saying is if, eg, at the end of the 13 weeks, those enquiries haven’t been completed, the assessment phase will not end for the student until it is determined under Reg 33(2) that he can be treated as having LCW as a disabled student. 

It shouldn’t, in the majority of cases, take more than 13 weeks to make Reg 20, 25, 26 33(2) determinations with the result that the assessment phase for such claimants should end under Reg 4(1).  The WRAC should be payable from wk14 so that there is no anomaly between those in 4(2)(a) and (b).  I can’t believe it took so long to work that out.  Of course, it may take much longer than 13 weeks for most claimants to undergo a LCWRA (support group) assessment but that’s fine: they can at least have the WRAC while waiting and if they do eventually get the SC, the difference between it and the WRAC can be backdated to wk14.  Terminally ill claimants again should be able to get the SC from day one without having to ever sit the LCWRA test (Reg 35 ESA).

Ken, I’m assuming you’re agreeing then with the above extract from my last post. 

John, I changed my view on Reg 4 in the course of this thread (in the last post actually).  My view is the same as Ken’s (at least in respect of Reg 20, 25 etc). In addition, I agree with your argument discussed in the linked thread referred to above that the assessment phase ends for those Reg 30 claimants who have not had a LCW assessment.

I’ve added comments in italics to Reg 4 below to clarify my view:

“4.—(1) Subject to paragraph (2) and regulation 5, the assessment phase in
relation to a claimant ends on the last day of a period of 13 weeks beginning on the
first day of the assessment phase as determined under section 24(2)(a) of the Act.

(2) If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet
been determined (ie either under Reg 19 or Reg 20, 25, 26, 29 or 33(2)) whether the claimant has limited capability for work–

(a) the claimant having been assessed in accordance with a limited capability
for work assessment (ie, a LCW assessment having been completed with only the formal Reg 19 determination awaited – “the McKendrick argument”); or

(b) as a result of the claimant being treated as having limited capability for
work in accordance with regulation 20, 25, 26, 29 or regulation 33(2)
(persons to be treated as having limited capability for work), (ie, the DM having to date made a working assumption that these claimants do qualify under one of these Regs but has still not formalised that view by making the Reg 20, 25, 26, 29, or 33(2) determination)

the assessment phase will end when the limited capability for work determination (ie, under Reg 19, 20, 25, 26, 29, 33(2)) is made.”

I still have my doubts about Reg 29’s place in the list but there you go. 

So in the majority of cases Dms will make the Reg 20, 25, 26, 29, 33(2) determination within a few weeks of the date of claim (eg, how much convincing does a DM need to be persuaded that someone is in hospital or is studying full-time and getting DLA?) in which case, again as I clearly mentioned in my last post, the assessment rate would end at the end of week 13.  It   The only exception being terminally ill claimants for whom the assessment phase does not need to end in order to receive a SC (but it will even end for them as soon as the Reg 20 determination is formally made).

I thought I’d made my view clear in the last post.  Never mind.